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Graffius v. Shinseki

December 11, 2009

CARRIE GRAFFIUS, PLAINTIFF,
v.
ERIC K. SHINSEKI, SECRETARY, DEPARTMENT OF VETERANS AFFAIRS, DEFENDANT.



The opinion of the court was delivered by: Henry H. Kennedy, Jr. United States District Judge

MEMORANDUM OPINION AND ORDER

Carrie Graffius, an individual with disabilities, was working as a program specialist in the Office of Facilities Management ("OFM") in the Department of Veterans Affairs ("VA") when her employment was terminated on November 1, 2005. She brings this action against Eric K. Shinseki,*fn1 in his official capacity as the Secretary of the Agency, alleging that the VA violated the Rehabilitation Act of 1973 ("Rehabilitation Act" or "Act"), 29 U.S.C. §§ 791 et seq, by failing to provide reasonable accommodations for her disabilities and retaliating against her by terminating her because she sought the accommodations.

Before the Court is the VA's Motion for Summary Judgment ("Def.'s Mot.") [#20]. Upon consideration of the motion, the opposition thereto, and the record of this case, the Court concludes that the VA's motion for summary judgment should be granted as to Graffius's retaliation claim and granted in part and denied in part as to her failure to accommodate claim.

I. BACKGROUND

Graffius was hired by the VA to "reconstruct and develop OFM's overall construction management information system and tracking databases" and adapt an off-the-shelf software product called Paragon 4 for the Agency's construction projects. Def.'s Statement of Material Facts Not in Genuine Dispute ("Def.'s Facts") ¶ 6, Def.'s Ex. 3. Her immediate supervisor was William Webb ("Webb"), director of OFM's Technology Support Service.

Initially, Graffius worked full time at the VA's primary location in Washington, D.C. In September 2001, however, she moved to East Freedom, Pennsylvania, a town approximately 160 miles away from her office. According to Graffius, while working at the VA she "suffered from multiple disabilities, including diabetes, carpal tunnel syndrome, trigger finger, skeletal issues related to neuropathy and compacted bowel syndrome," Compl. ¶ 14, conditions that "substantially limit[ed] her major life activities, including walking, normal excretory functions, performing some manual tasks, and the ability to care for herself." Pl.'s Opp'n at 11.*fn2 Because of her medical conditions, Graffius used a wheelchair.

In late 2001, Graffius reported that she was experiencing health problems related to her diabetes and required frequent medical care. In an effort to accommodate Graffius's health problems, Webb approved an agreement that allowed her to work from home, or "telecommute." During the time when Graffius was allowed to telecommute, she received a Performance Appraisal from Webb indicating that her performance was successful in all areas.

In May 2003, the VA decided that it was no longer feasible to have Graffius telecommute fulltime; therefore, Webb asked Graffius to develop a plan and schedule for her return to work at the office on at least a part-time basis. Because she would have to depend on her husband to drive her, Graffius indicated that she could come to work in D.C. only one day a week. Webb agreed to Graffius's proposed schedule and she began commuting to work in June 2003.

Before returning to her D. C. office, however, Graffius, in an email sent to Webb, requested several workplace accommodations, including an ice machine, a walker, and a cane. The building in which she worked, however, did not have an ice machine and only temporary employees were allowed to use any available walkers or canes. Nevertheless, Graffius reported to work in June 2003 as agreed.

In October of 2003, Graffius reported to management that she suffered a broken leg and could no longer report to the Washington, D.C. office one day a week.*fn3 Believing that her injury resulted from the VA's failure to accommodate her as she had requested, Graffius informed the VA that she would not be able to return to work at the D.C. office until her requested accommodations were provided.

In a letter dated April 28, 2004, Webb informed Graffius of the VA's decision to terminate her telecommuting arrangement, effective June 1, 2004. Webb stated that "[t]echnology changes and work priorities demand your presence in the office on a regular basis," and advised Graffius to report to work in Washington, D.C. beginning June 1, 2004.

Def.'s Ex. 17.*fn4 Graffius did not return to work as directed. After depleting her sick and annual leave, Graffius applied for additional leave under the Family and Medical Leave Act ("FMLA") to recover from a surgery she had on her hand.

On November 4, 2004, Webb sent Graffius a memorandum that summarized the events surrounding her FMLA leave request and informed her that she was allowed to use 12 administrative workweeks of unpaid leave under FMLA. Webb also requested that she contact him immediately to discuss her current status and the report date for her return to the office.

In a letter dated December 6, 2004, Webb notified Graffius that she had exhausted her FMLA leave as of November 29, 2004.*fn5 Moreover, because she did not have leave to cover her absence from work, Graffius was placed on Absent Without Leave (AWOL) status. Webb warned Graffius that AWOL could lead to her removal from employment with the agency and from the Federal Service.

On January 24, 2005, Webb again wrote to Graffius regarding her AWOL status and ordered her to report to work no later than February 7, 2005, and urged her to contact him or Carolyn Gill,*fn6 the agency's Human Resources Liaison, immediately to discuss her return to the office. On February 4 and February 7, 2005, Graffius called Gill and discussed her need for various accommodations at the office. Graffius made several requests, including a handicapped-accessible restroom on the floor on which she worked, wrist bands, a special keyboard, and a mouse. Gill informed her that the VA could most likely meet her needs for an office located on the same floor as handicapped bathroom facilities, but that it "could not purchase the other items . . . until [it] had the specific technical requirements and specification," and that Gill had received "no medical documentation whatsoever." Def.'s Ex. 27. Graffius never provided the VA with the documentation that it requested, and did not return to work on February 7, 2005, or anytime thereafter.

On March 23, 2005, Webb wrote Graffius a letter addressing her long distance commuting situation and responding to her request for accommodations. Webb stated that (1) the building in which Graffius's office was located met all applicable handicapped-accessible requirements; (2) Graffius had elevator access to a wheelchair-accessible bathroom on the floors above and below her floor and her office was only 20 feet from the elevators; and (3) "keyboards, mouse(s), wrist pads, etcetera, are routine purchases for employees upon request." Def.'s Ex. 28. There is no indication in the record that Graffius responded to Webb's letter.

Graffius received the VA's Notice of Proposed Removal based on a charge of excessive absence on April 21, 2005. The VA charged Graffius with ten specifications of AWOL totaling 760 hours between November 29, 2004, and April 15, ...


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